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Old December 20, 2011, 03:58 PM   #1
maestro pistolero
Senior Member
Join Date: August 16, 2007
Posts: 2,148
Bonidy vs US Postal Service

Transcript of oral arguments for MSJ 11/19/11

A great read. The judge assumes 2A applies outside the home. More than hints that intermediate scrutiny may apply, at least in the public parking lot. He also claims 1A jurisprudence in analogous. The judge isn't swallowing the sensitive places argument, at least in the parking lot.

This is a good one to watch.

20 THE COURT: But I’m--that’s what I’m challenging, your
21 position that, because it’s proprietary you can’t look at
22 whether it affects any constitutionally protected activity.
23 You would agree, wouldn’t you, that if somebody comes in
24 there with a bumper sticker that says, “I hate the Postal
25 Service,” the Postal Service can’t keep them out.
MS. FARBY: Yes, Your Honor, because 1 that would likely
2 be an unreasonable regulation, but here--
3 THE COURT: Well--
4 MS. FARBY: --the Postal Service decision to prohibit
5 firearms on its property to further the interest in public
6 safety--
7 THE COURT: Well, isn’t that the very question, whether
8 that is reasonable, whether there’s no way in which, by a
9 permitting process or in any other fashion, like trigger
10 locks--you know, there are a lot of ways in which a firearm,
11 on this--at least the public parking lot, can be considered
12 inaccessible while it’s on the public parking area. Right?
13 MS. FARBY: Right.
14 THE COURT: You could have a requirement that there be a
15 trigger lock, that it be in a glove compartment, locked. And
16 what would be wrong with that?
17 MS. FARBY: Well, the Supreme Court has made clear that
18 when--
19 THE COURT: Don’t talk about the Supreme Court, I’m
20 talking about this case.
21 MS. FARBY: Okay. The Postal Service is not required to
22 enact the most reasonable, or the only reasonable,
23 regulation, so just because the Postal Service could have
24 imposed a standard that was less stringent than the one it
25 has imposed, does not mean that the standard it did impose is

1 unreasonable when it’s acting in its proprietary 1 capacity.
2 That’s established case law. As long as the Postal Service
3 regulation is reasonable then it passes muster, and here the
4 Postal Service--
5 THE COURT: Well, how do I know whether it’s reasonable?
6 That’s the problem with this being considered on a motion to
7 dismiss. The reasonableness of it depends upon whether there
8 are any other alternatives.
9 MS. FARBY: Well, again, Your Honor, the Court has made
10 clear that the Postal Service is not limited to the least
11 restrictive means available to it to further its purpose.
12 THE COURT: What Court said that?
13 MS. FARBY: The Supreme Court, Your Honor.
14 THE COURT: In what?
15 MS. FARBY: I’ll provide the cite, Your Honor.
16 (Pause.)
17 The case I’m referring to, and I believe that
18 language is found in many different cases, but the specific
19 language I’m referring to is in Board of Trustees of State
20 University of New York versus Fox, which is a 1989 Supreme
21 Court--
22 THE COURT: Yeah, which doesn’t deal with the Postal
23 Service.
24 MS. FARBY: No, it doesn’t deal with the Postal
25 Service--

MS. FARBY: The Second--the Postal Service regulation
5 here doesn’t affect Second Amendment rights at all outside of
6 Postal property. It’s a narrow regulation. All it does is
7 says you can’t bring firearms onto Postal property, and the
8 regulation, of course, says nothing about any other place in
9 which the Bonidys or any other person might exercise their
10 Second Amendment right. It’s a very narrow regulation.
11 THE COURT: Not when it comes to a public parking lot it
12 doesn’t seem narrow to me.
And finally, this exchange:
THE COURT: Why would it make a difference whether
8 they’ve ever--I mean, it’s--you said common sense. Common
9 sense is that when there’s an ordinance that says you can’t
10 park here when there’s two inches of snow, and you’re in
11 Avon, Colorado, they’ve had days when they can’t park there.
12 That’s common sense, agreed?
13 MS. FARBY: I agree with that, Your Honor, but in order
14 for the Court to even look at whether this regulation
15 infringes a constitutional right, there must be a substantial
16 infringement, and they have not alleged a substantial
17 infringement. That’s--
18 THE COURT: What constitutes a substantial infringement,
19 more than one day? Does it have to be more than ten days?
20 What are you talking about?
21 MS. FARBY: I don’t know, Your Honor.
22 THE COURT: Exactly.
I like the smell of this one.

Last edited by maestro pistolero; December 21, 2011 at 12:32 AM.
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